Hall's Air Conditioning & Plumbing v. Collins

GRIFFIN, P. J.

Hall’s Air Conditioning and Plumbing, as subcontractor, plaintiff-appellant, creditor and garnishor, brought an action against M. Z. Collins, individually and doing business as M. Z. Collins Construction Company, a general contractor, and defendant herein in the lower court, for

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$6,016.34 upon a written contract between them whereby plaintiff, as subcontractor, furnished plumbing and air conditioning for construction upon the owner’s property. The owner, garnishee and respondent herein, is Harold Hicks. The owner is neither named nor included as a defendant in this action.

The plaintiff obtained a writ of attachment and caused it to be served by the city marshal upon the owner on December 13, 1961. The owner admits having $22,202.44 which, except for claimed offsets, is due Collins under the owner’s contract with the defendant general contractor.

Respondent’s affidavit shows that at that time he had pending against him and his property numerous actions for foreclosure of mechanics’ liens which he was obligated to pay, due to defalcation of defendant Collins and which he claims as an offset against any claim by Collins against him. Respondent stated that he had no money to pay the defendant Collins because the money which he had not yet paid Collins on his contract was required to relieve his property of liens filed against the property by reason of Collins’ breach of the contract in failing to keep the property free of liens. The owner alleges that the total amount of such liens greatly exceeded the amount of plaintiff’s claim (i.e., in excess of $9,000). He and the marshal making the levy made a return to the garnishment accordingly. The garnishee (Hicks) was ordered before the superior court on February 2, 1962, to testify under oath respecting the money due defendant Collins.

The owner noticed a motion for dissolution of the garnishment for January 26, 1962, on the grounds that these prior claims constituted an offset against other sums due by the owner to Collins, and accordingly he had no money on hand to pay over to the garnishor at the time of service of this attachment. Affidavits to this effect were filed. Plaintiff filed an affidavit in opposition thereto, setting forth the names, title, numbers and amounts involved in the cases, and alleged that an inspection of them showed that in no action had a judgment been entered upon the date of the levy of attachment.